Category: Condominium

1. Records

There will be different types of records, which must be retained for different periods of time and which have different procedures for access by owners. The following are some of the highlights.

Core Records: These records are listed in the regulations. Some examples of these documents are the Record of Owners and Mortgagees, Notices of Leases, Meeting Minutes, Current Budgets and Information Certificates. A corporation’s by-laws will be able to specify additional core records beyond those listed in the regulations. I doubt, however, that many corporations will add to the burden by increasing their number.

Records will have to be stored either in paper or electronic form and, if in paper, in a place not too far from the condominium.

These core records must be available to owners who request access to them (the “Requester”) on an expedited basis and at reduced fees. The manner of delivery of copies of core records can be either electronic or in paper form as agreed between the Requester and the condominium corporation. The Requester may also ask only to review the records without requiring copies.

Non-Core Records: Non-core records are those documents, which are not defined or included in the by-laws as core records. They are to be available to a Requester who requests them through a somewhat complicated written process. The regulations will include a form for requests, which will have to be delivered to the address of service for the corporation. If the board is not willing to deliver the records, it must respond accordingly to the Requester, who can then deliver a further response challenging the corporation’s position. It is not a simple process and may extend the time for receiving records quite considerably. Hopefully, most boards will be willing to provide records, and a delay in the delivery of records will not become the norm. The regulations set out specific timeframes for compliance with the request process steps, as well as penalties for non-compliance.

Retentions of Records: Different records are subject to different rules regarding access, as discussed above, and must be retained for different periods of time, being: 90 days, 7 years or forever. For example, proxies are to be retained for 90 days; but if a request to review proxies is made and the proxies are not delivered within the applicable timeframe, then the retention period for the proxies is extended beyond the 90 days to a fixed date set by the regulations. This approach is to prevent the situation where a corporation fails or refuses to respond to a record request and then states that it is no longer able to comply because the records in question have been destroyed. In order to comply with all these new obligations, it will be crucial for management and boards of directors to ensure that proper records are kept and that they comply with the request for access process.

The individual seeking access to the records will have to pay different fees and/or costs depending on the records requested. For example, photocopy charges will be limited to 20 cents/page, and the cost of labour for photocopying will be recoverable only if the corporation actually pays it out of pocket to a third party, such as the management company.

2. Information Certificates

In response to owners’ complaints that they are not being kept informed of condominium matters, the government has created an obligation on condominium corporations to issue Information Certificates, which must be delivered to all owners as set out in the regulations. There are three such certificates: the Periodic Information Certificate, the Updated Information Certificate and the New Owner Information Certificate. The New Owner Information Certificate is intended to be the same as one of the other two, depending on when someone becomes an owner.

These certificates are designed to ensure that owners are advised of information of which the board might have knowledge (such as information that goes into Status Certificates) so that they are kept apprised of the business of the corporation and are not surprised by disclosures when they list their units for sale or are refinancing. New Owner Information Certificates must be sent to new owners within 15 days of their ownership information being provided to the corporation for inclusion in the Record of Owners and Mortgagees.

3. Board Elections and Candidates

The Condominium Act requires that a pre-notice of a meeting at which directors are to be elected be sent to all owners. It asks those persons interested in running for positions on the board of directors to submit their names and the mandatory disclosure information. The regulations set out the particulars of what candidates must disclose so that owners can make an informed decision as to which representatives they wish to have on the board of directors. In addition to the mandated disclosure, a corporation’s by-laws can require that additional information be disclosed.

One of the new disclosure obligations mandated by the regulations is whether the candidate is an owner and whether he or she is in arrears of common expenses for greater than 60 days. Most of the by-laws that our office prepares for condominium corporations now require that board members be owners who live in the building or individuals who live with an owner in the building. By-laws prepared by developers and older by-laws do not typically include this provision. We suggest that the Ministry add to the disclosure requirements whether the candidate is an owner who lives in the building or lives with someone who is an owner-resident in the building. If the government does not include this requirement in the regulations, we recommend that condominiums add this provision when reviewing their by-laws. In our view, owners should know whether the people running for the board have an ownership interest in the building and/or whether they live there.

The regulations are not only lengthy, but also very complex. TheCondominium Act amendments contain 661 references to regulations. Not all of these references will actually result in regulations being prepared, but what we have seen so far is going to be a challenge for everyone in the industry. They will add significantly to the learning curve for everyone dealing with the Condominium Act and the regulations.

On February 13, 2017, the Ontario government (finally) released some details concerning the proposed regulations (the “Regulations“) under the Condominium Act, 1998 (the “Act“).

The Regulations address only a few areas of the overall changes to the Act, said areas being:

Communications (planned to come into force on July 1, 2017)

Director Qualifications and Training (planned to come into force on July 1, 2017)

Meetings (planned to come into force on July 1, 2017)

Records (planned to come into force in fall 2017)

Keep in mind that the amendments to the Act are not yet in force, and these comments are based upon information available from the Ministry to date. More detail is to follow in the draft Regulations. Comment on these proposed Regulations may be made to the provincial government until March 30, 2017.

While the government has provided a ‘plain language summary’ of the changes, that summary is 39 pages long. Here, I will further summarize (some aspects of the Regulations will not be covered here) and point out some highlights, using the general areas of change outlined above.

I. COMMUNICATIONS (TO OWNERS AND MORTGAGEES)

A. Information Certificates

The new s.26.3 of the Act references requirements for certain “information certificates” to be sent by the Corporation to owners and mortgagees. These are to include:

Periodic Information Certificate (“PIC”)

This information certificate is to be provided by the condominium to owners twice per fiscal year, within 30 days of the end of the first and third fiscal quarters. Much of the information is similar to what might be found in a Status Certificate, although there are quite a few additional requirements and explanations required.

Information Certificate Update (“ICU”)

To be required upon various events, including upon any change in directors, management and addresses for services for same.

New Owner Information Certificate (“NOIC”)

To be sent within 15 days of a new owner giving notice in writing of becoming an owner. The NOIC is to include a copy of most recent PIC and ICU, and any other materials required by the by-laws.

Exemptions

There will be a limited exemption to providing any of the information certificates for condominiums of fewer than 25 units, and where 80 percent of the units consent in writing to dispense with the requirements in that fiscal year.

B. Record of Owners and Notice to Owners

There will be a specific requirement for new owners to provide the owner’s name and unit number information as soon as possible after becoming an owner, and in any event within 30 days.

The changes to the Act provide that owners may receive notice from the corporation by fax, email or other method of communication if the owner agrees. The Regulations will provide for the basic requirements for an ‘agreement to electronic delivery’.

II. DISCLOSURE AND TRAINING FOR BOARD MEMBERS

Disclosure Obligations for Candidates

When a preliminary notice of meeting is sent for a meeting that includes the election of directors (see below re: ‘preliminary notice’), individuals providing notice of their intent to be a candidate would be required to include a statement including the required disclosure. The disclosure would then be included with the notice of meeting.

If the candidate does not provide a notice of intent to be a candidate or the required disclosure in advance, then the candidate would need to make the disclosure at the meeting.

What’s in the disclosure? The list is lengthy, but includes information regarding legal proceedings involving both the candidate and the corporation, information on any convictions under the Act or Regulations, disclosure of interests in contracts and transactions involving the corporation or the developer, and a statement if the candidate is in common expense arrears more than 60 days.

Disclosure Obligations for Directors

For post-turnover Boards, the disclosure obligations of board members is similar to that required and explained above concerning candidates. Keep in mind that under the new s.29(2)(f) of the Act, a director who does not provide the required disclosure within the required time immediately ceases to be a director.

Training

Directors would be required to complete training within six months of being elected or appointed, if elected or appointed after the applicable Regulations come into force. The Condominium Authority is authorized to either develop the content of the training or designate another organization that would be authorized to provide the training. Directors have the right to be reimbursed for the costs directly incurred in the required training.

III. MEETINGS AND VOTING

A. Notices

Preliminary Notices and Notices of Meeting

The Act requires the preliminary notice of meeting to be sent at least 20 days before the notice of meeting. The Regulations provide that both the preliminary notice and the notice of meeting must be on a standardized form.

Requests for information

Director Candidates

If the meeting includes election of directors, the preliminary notice must include a request that candidates notify the board in writing of their intention to be a candidate. The candidates would also need to provide any required disclosures together with their notice of intention to be a candidate. The preliminary notice must also include the text of s. 29(1) of the Act, together with the applicable portion of the Regulation regarding candidate disclosures.

Auditor Candidates

Where the removal or appointment of the auditor is to be included on the meeting agenda, the preliminary notice must also include a request that owners wishing to propose a candidate for auditor do so in writing prior to a stated deadline. Such information would then be included in the notice of meeting.

Other Material

The preliminary notice must also request that if owners wish to include any material with the notice of meeting, that it be provided by a stated deadline.

The Board would not be required to include such material in the notice of meeting unless the submission is made on behalf of at least 15 percent of the owners, and the submission does not request to add anything to be presented at the meeting that is contrary to the Act or Regulations.

B. Quorum and Voting

Quorum

For turnover meetings, annual general meetings (and any other meeting to elect directors or appoint a new auditor), quorum would be at least 25% of owners on the first and second attempts to hold the meeting, and 15% on subsequent attempts.

Voting

The summary of proposed regulations on this issue is very brief and somewhat unclear. The draft regulations are particularly important to review here. There would appear to be a deemed provision in condominium by-laws (subject to certain exceptions) concerning disclosure or nondisclosure of the voting person’s name or unit.

Proxies

There will be new mandatory proxy forms. There is little detail beyond that fact in the summary.

Board meetings

Board meetings may be held by teleconference, or by any other communications system, provided that the directors may communicate concurrently (without the need for a by-law as is currently the case). Note that s.35(5) of the Act would require all directors to consent to this method of holding the meeting.

C. By-law Voting Threshold

By ‘default’ in the Act, by-laws must be approved by a majority of all units (whether present in person or by proxy at the meeting or not).

This basic requirement will remain the same however there will be various limited exceptions, primarily relating to information certificates, candidate disclosure, means of communication, some meeting/voting requirements where the threshold will be a majority of votes cast at the meeting.

IV. RECORD RETENTION AND ACCESS

Retention Periods

There would be two primary retention periods, being a seven year minimum for financial records and other operating records of the corporation and an unlimited retention period for fundamental corporation documents.

Access to Records

The records access process would essentially be as follows:

Request – Using a standardized form the requester would identify the records requested and the preference as to access (eg. delivery by email, hard copy, examination in person.

Board Response – The Board would be required to respond within 15 days using a standardized form, including itemized estimate of cost of access, and identifying any records or portions of records not to be provided, and the reasons for same.

Requester Response – The requester would respond using the Board’s standardized form confirming the records requested, together with any payment.

Access and Accounting – Access provided and accounting of actual costs to the requester.

Some details of the process depends upon whether documents requested are ‘core’ or ‘non-core’ documents.

Core Records

Core records include documents such as the declaration, by-laws, rules, shared facilities agreements and various current documents such as current fiscal year budget, recent minutes, and reserve fund study plan.

If the request is for electronic delivery, the corporation may not charge for providing the records. The corporation must deliver the documents within 15 days of receiving the request. Accordingly, the records would be delivered at the same time as the Board Response.

If the requester does not agree to electronic delivery, then the corporation may charge for printing/copying costs only. Paper copies must be made available or delivered within 7 days of receiving the Requester Response together with payment of the estimated copying cost.

If the requester requests to examine the records in person, the records would need to be made available within 7 days of receiving the Requester Response together with payment of the estimated costs. Here, the corporation could charge labour costs for examination and copying and printing costs if applicable.

Non-Core Records

The process described above applies to non-core records, with the following changes:

the corporation must provide access to the records within 30 days of receiving the Requester Response together with payment of the estimated allowable costs.

it would appear, and the draft Regulations will need to be reviewed to provide more detail, that labour costs could be applied (subject to discussion below) for providing access even if the request is for electronic delivery.

Overall, the ‘Access’ portion of the summary could be clearer and we will be looking to the Regulations for such clarity.

Costs of Access

Photocopying could be charged at a rate of up to $0.20 per page. Labour and delivery fees must be reasonable and constitute reimbursement of the corporation for the actual costs incurred by the corporation in providing access to records.

Penalty

If the Corporation, without reasonable excuse does not permit access to records under s.55 of the Act, the corporation is subject to a penalty of up to $5,000.